Be aware: texting nude photos may be more dangerous than you realize
“Sexting” – or sending (texting) someone asexually explicit photographs or messages on your cell phone – has become very popular amongst teenagers as smart phones have taken off.
Unfortunately, what frequently happens when teenagers send these compromising photos to each other is that the photo is either shared with others or posted on the internet without the subject’s consent.
The Law in Texas
Texting sexually explicit photos is covered under the Texas Penal Code on Sexual Offenses, which states that an individual commits unlawful disclosure or promotion of intimate visual material (a state jail felony) if they:
- Intentionally disclose visual material depicting someone else with their intimate parts exposed or engaged in sexual conduct without their consent;
- Obtain it under circumstances in which the person depicted had a reasonable expectation of privacy that the material would remain private;
- Cause harm to the depicted person by disclosing the material; and
- Reveal the identity of the depicted person in any manner, including via subsequent information/messages provided or via information provided by a third party, by disclosing the material.
In addition, an individual can be found guilty of the offense by simply threatening to disclose the material without the consent of the depicted person if that individual makes the threat to obtain a benefit via not making the disclosure or otherwise in connection with the potential disclosure. They can also commit the offense if they promote the visual material on the internet or in another forum for publication. The law declares that it is not a valid defense to prosecution if the depicted individual created or consented to the creation of the material, or voluntarily sent it to the individual who then used or threatened to use it, disseminate it, etc.
However, it is an affirmative defense to prosecution if the disclosure is made in the course of law enforcement, medical treatment, reporting an unlawful activity, or a legal proceeding, whereby the disclosure is permitted by law. It is also an affirmative defense if the disclosure or promotion consists of material depicting (in a commercial or public setting) only the depicted individual’s voluntary exposure of their intimate parts, the person engaging in sexual conduct, or the circumstances involve interactive computer services.
Texas also has a specific “sexting law”(the “Electronic Transmission of Certain Visual Material Depicting Minor) to specifically address a minor (under 18) intentionally possessing or promoting to another minor visual material that depicts a minor engaged in sexual conduct electronically if they know another minor produced it.
Is It Considered Child Pornography? Does It Depend On Age?
Texas also has laws on the sale, distribution, or display of harmful material to a minor, sexual performance by a child, and possession of promotion of child pornography. While the statute does not define “child pornography,” it defines the offense as knowingly or intentionally possessing, or accessing with intent to view, visual material that visually depicts a child under the age of 18 engaging in sexual conduct and the individual knows the material depicts the child as such.
Texas Juvenile Defense Attorneys
If you or your teenager has been charged with an offense under Texas sexting laws, contact our experienced criminal defense attorneys today to find out how we can help.